No other option
Transfer should be used only when it is impossible to accommodate the employee in the original position, Saab said. Employers may transfer workers in circumstances when there are other possible accommodations that would cause undue hardships, or when reassignment simply would be the most suitable accommodation.
Reassignment should not be taken lightly, Saab stated. There is a lot of preparation involved in moving an employee from one position to another. Not only must the employee qualify for the position, but employers also should consider the time it will take to train the employee on how to perform the essential functions of the new position.
Employers should seek to place workers in positions equivalent to their original ones. If no such positions are available, "employees can be demoted," Saab said. A worker can be required to compete for any vacant position that would constitute a promotion, according to the EEOC´s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.
An employee may be paid what a person in the demoted position would be paid. Employers have to be careful they are not setting precedents when they transfer employees to lower positions but maintain their original pay, Saab warned. If similar situations arise later, employers may be required to do the same for other employees.
Reassigning employees is an accommodation of last resort because the ADA´s intent is to find ways to maintain employees in their original positions through accommodations.
Reassignment and leave
An employer does not have to provide the exact accommodation an employee with a disability requests. Employers can forgo an accommodation preferred by the employee such as ADA leave if it would cause an undue hardship, Saab said.
But employers usually cannot force workers to take an accommodation such as reassignment in lieu of FMLA leave, said Charles Goldman, a disability rights attorney in Washington, D.C. Reassignment of an employee as an ADA accommodation is not an option when the employee is entitled to FMLA leave. Under the FMLA, employees who have worked 1,250 hours in the previous 12 months for an employer with 50 employees within 75 miles are entitled to 12 weeks of unpaid leave.
Nevertheless, reassignment is an option if an employee is returning from ADA or FMLA leave and the former position is no longer available, he said. Under the FMLA, the position would have to be equivalent to the former one.
Alternative position
In addition, transfers to temporary alternative positions may be necessary for workers requesting foreseeable intermittent or reduced leave. An alternative position may be offered if it is a better fit with the employee´s recurring periods of foreseeable leave and provides equivalent pay and benefits.
But the alternate position does not have to have equivalent duties. An employer may not transfer the employee to discourage the worker from taking leave or cause a hardship to the employee.
Transferring a worker to an alternative position will require coordination of compliance among any applicable collective bargaining agreement, the ADA and state laws. The Supreme Court ruled that collective bargaining agreement obligations such as reassignment based on seniority can trump reassignment as a reasonable accommodation (U.S. Airways v. Barnett, 535 U.S. 391 (2002)).
Light duty
Employers can move workers unable to perform the essential functions of their original jobs to light-duty jobs as an accommodation if reassignment would be an undue hardship, according to Ermena Barclay, HR director for AMIDEAST.
When employees return from leave with disabilities, they can be temporarily placed in less strenuous positions, she said. If the existing light-duty job is temporary, the reassignment can be for the temporary period and the employer need not convert the temporary job into a permanent one. The goal is to get the employee "back on the job as soon as possible," said Barclay.
This article originally appeared in the September 2003 issue of The Leave & Disability Coordination Handbook. More information about the Handbook is available at http://www.thompson.com/libraries/leave/index.html.